Here is a link to NMCCA’s latest and greatest En Banc opinion, United States v. McMurrin, No. 200900475 (N-M Ct. Crim. App. Sep. 21, 2010), implementingCAAF’s recent conversion to the elements test for determining LIOs, see United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).   Judge Price, writing for a unanimous court (though Judge Booker filed a concurring opinion and Judges Resimeier and Payton-O’Brien did not participate), begrudgingly implements CAAF’s conversion, writing:

Notwithstanding more than 60 years of precedent, we conclude that the CAAF’s decisions in [United States v. Miller, 67 M.J. 385, 388 (C.A.A.F. 2009)] and Jonesconstitute binding precedent and are dispositive here.

Post-Jones, the statutory elements test is the primary, if not sole, test for determining what constitutes an LIO under Article 79, UCMJ.  As negligent homicide includes at least one element not explicitly included in the offense of involuntary manslaughter, it is not an LIO of involuntary manslaughter.  In addition, the specification alleged did not otherwise provide the appellant notice that he must defend against the offense of negligent homicide.  Accordingly, we conclude the approved findings of guilty to negligent homicide must be set aside.

Judge Booker takes issue with Miller and Jones.  This about sums up his comments:

In sum, I worry about the potentially overbroad reach of Jones and Miller.  Those two cases could wipe away decades of precedent — of particular concern in this case, the precedent noted in the majority opinion regarding the relation between involuntary manslaughter and negligent homicide; could do serious violence to the concept of stare decisis — particularly the predictability that such a doctrine affords; and could turn an “eminently straightforward” approach to military justice into a Gordian knot of confusion.

Thanks to CAAFlog for alerting me.

13 Responses to “New NMCCA Decision Implements “New” Elements Test, Sets Aside LIO Finding”

  1. publius says:

    Yet again, formalism conquers common sense at NMCCA. Since CAAF boxed them in by fetishizing Art 134’s “terminal elements” in Jones, this one’s not as egregious as Hutchins.

  2. Snuffy says:

    I remember the same “sky will fall” bit in the early nineties when the CMA actually went back to Blockberger to clear up the mutltiplicity madness that had been taking place. As far as I recall, the sky did not fall and counsel adjusted just fine.

  3. John Harwood says:

    I can sympathize with Judge Booker’s frustration. However, calling our previous practice “eminently straightforward” is a bit of a stretch. Okay, not even a bit of a stretch – it’s a mischaracterization. Under the previous standard, the government was getting away with lax charging and poor prosecutions by dragging in a bunch of LIOs that the accused had no notice of. Had the government and trial judges been more circumspect in arguing for LIOs, there’d have been no need for CAAF to inject itself in this area. Yet another lesson that if MJ practitioners won’t police themselves, CAAF will do it for us, and we may not like the outcomes.

  4. Anonymous says:

    You all need to check out Peterson and Lamb, also issued yesterday, where the Court en banc sets aside two sexual assault convictions for factual insufficiency and Judge Maksym pulls a Harris with two concurrences that are 95 percent “replications.”

  5. Dwight Sullivan says:

    “pulls a Harris” — wow, Anon 1510 is going old school. For anyone who doesn’t get the reference, see United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004).

  6. Christopher Mathews says:

    I look forward to the inevitable decision five years hence in which the government is taken to task for unreasonable multiplication of charges when it includes all of the now-former LIOs on the appellant’s charge sheet.

  7. John O'Connor says:

    My thought exactly. Do we really want cases to plead both involuntary manslaughter and negligent homicide. It seems to me that if it’s listed in the MCM as an LIO, that’s some degree of fair notice.

  8. publius says:

    Tremendous point. An appellate judge who shall remain nameless might opine: “An ill-begotten, overwrought charge sheet crafted by apparently incompetent junior prosecutors with no oversight from superiors who should be concerned about their juniors’ professional development, not to mention the great charge the United States of America has given them in administering justice. As is well-known, it is well-within the well-established powers of the military judge to do whatever he wants, so the judge erred in not doing what I would have done if I was in his place, namely put the convening authority on the stand and insulted him. (See US v. Gore). An utter disgrace and dark day, as Shakespeare should have said, in United States history.”

  9. Snuffy says:

    It’s only a problem if the judge allows the conviction for those multiplicious specifications. Exigencies of proof (this sounds like it was tailor made for inept trial counsel) allow for charging in the alternative. But, if you investigate and actually assess the evidence before you draft your charges- not ususally an issue.

  10. Pat Pflaum says:

    Despite the court’s discomfort with setting aside the conviction for negligent homicide, I think that the language in Jones dictates this result. As Judge Booker and several contributors pointed out, there can be no doubt that this will create longer and more convoluted charge sheets as counsel try to ensure that the charge sheet accounts for every “exigency of proof.” It will be interesting to watch how instructions and findings adapt to fewer LIOs and more extensive “pleading in the alternative” after Jones. The LIO jurisprudence over the last year seems to have knocked some of the teeth out if the concept of “unreasonable multiplication of charges.” I think, though, that counsel and convening authorities (guided by the trial judiciary) will soon see the wisdom in avoiding overly-complicated charge sheets. It will also be interesting to see how the punitive articles and the MCM adapt to Jones. Might Congress move any of the listed Article 134 offenses to the enumerated articles? Negligent Homicide, Communicating a Threat, and Kidnapping seem like ideal candidates. Which others? The Jones opinion skewered the MCM’s explanation to Article 79. Might Article 79 be re-crafted to allow for a robust listing of offenses under Article 134 and more streamlined charge sheets?

    MAJ Pat Pflaum
    CGSOC Class 11-01
    Fort Leavenworth, KS

  11. John O'Connor says:

    Lots of good thoughts here. I too have wondered if a response to a renewed elements test might be to move some 134 offenses up to enumerated articles, thereby getting rid of the terminal element. Unfortunately, it seems to me that the MCM and UCMJ are not particularly responsive to court decisions, and instead more often get amended to deal with political fetishes, etc. (see, e.g., UCMJ, art. 58b; Mil. R. Evid. 413).

    I agree that the LIO law more or less is in tension with the concept of unreasonable multiplication of charges. It can’t really by an unreasonable multiplication if charging in the alternative is required by case law. I do have my doubts that “counsel and convening authorities . . . will soon see the wisdom in avoiding overly complicated charge sheets.” Thatb sounds great until a drunk driver completely walks because the members are convinced that drunk driving was ordinary negligence and not gross negligence. I think the more likely result is that this beciomes a trap for the unwary TC who doesn;t know enough about military justice to foresee the potential alternative charges that now have to be expressly pleaded.

    FWIW, I think the nature of military justice makes slavish adherence to civilian case law on an issue such as this questionable.

  12. Christopher Mathews says:

    Sunffy, investigating and assessing the evidence only takes you so far. As a prosecutor, you often have no insight at all into the testimony of a key witness: the accused. You have little choice but to plan for the “exigencies of proof” you mentioned.

    Even if they had a crystal clear preview of all the evidence, I would advise young prosecutors to still charge in the alternative. You can’t predict the behavior of individual court members or necessarily anticipate how they view the evidence. It’s more complicated when you try to look at their conduct as a group: a panel’s behavior closely conforms to Harvard’s Law:

    Under the most rigorously controlled conditions of light, humididty, pressure, nutrition and temperature, the organism will do as it damn well pleases.

    So, I expect to see a lot of LIOs charged separately, a lot of kvetching about it, and perhaps a renaissance of case law on multiplicity for sentencing.

  13. Harvey Ames says:

    RE: Lamb-Peterson case.I was the investigator for the Court Marshal and the defense would not put on the majority of the evedience to prove thier clients innocence.They allowed the TC to run the show.I objected and was kicked off the base.I was also the investigator for the appeal and you see how it ended.This case should never have gone to trial.And the sad part is its still happening daily still.